Two New FLRA Decisions: Practitioners Pay Attention!

By on February 23, 2008 in Current Events with 0 Comments

The Federal Labor Relations Authority (FLRA) in two recent decisions reaffirmed an old labor relations maxim that goes, ‘Ya Snooze, Ya Lose." They are both worth a read as cautionary tales. The union blew it in both of these, but Agencies shouldn’t nap at critical times either.

No Argument or Authority

In the first case, 62 FLRA No. 59, dated January 25, 2008, the union failed to address the agency’s claims of non-negotiability of any of five of its proposals. FLRA found that:

"Where a union offers no argument or authority disputing an agency’s claim that a proposal affects management rights and does not make any argument that the proposal constitutes an exception to management rights, the Authority will find that the proposal is outside the duty to bargain. See Nat’l Air Traffic Controllers Ass’n, 61 FLRA 658, 660 (2006) (NATCA) (citing NAGE, Local R1-109, 56 FLRA 1043, 1044, 1045 (2001); Nat’l Air Traffic Controllers Ass’n, 61 FLRA 341, 343 (2005))…"

For Agency practitioners, the operant words are NO ARGUMENT OR AUTHORITY! FLRA dismissed the negotiability appeal. So here’s my question: The union files a case and doesn’t withdraw it but makes no argument either, how about paying the Agency’s costs for such a frivolous appeal?

No Proposal, No Case

The second case, 62 FLRA No. 63, dated January 30, 2008 involved an arbiter’s award on a grievance claiming the Agency violated the contract by implementing a new performance system. The union, apparently unhappy with the new system, filed grievances and requested bargaining.

But when the Agency claimed part of the union’s proposal was nonnegotiable and put a counter on the table, the union never responded with a counter to that proposal nor filed an appeal. The Agency implemented and the rest is history. While by far not the first of these type cases, it serves as an important reminder that passing the ball creates responsibilities and consequences if those responsibilities aren’t carried out. This gives rise to another perhaps politically incorrect buy nonetheless true saw, "A Blind Man Has No Business in a Card Game." The union dragged the Agency to arbitration and then on to an appeal of the arbiter’s award. How about some cost reimbursement to the Agency involved in this one as well?

Any opinions expressed above are mine alone.

By the way, GRA is offering Advanced Bargaining Training: Focus on Contract Negotiations March 4-6, 2008 in the Washington DC Metro area. We’re doing a three day version at the recommendation of the folks who attended the pilot session in Newport, RI in October. A well received session in the course addressed in detail what management should put on the table to gain critical leverage (Over 30 sample proposals were provided and discussed. The class suggested more too.). Yours truly will be one of the instructors. For more information go to the GRA Ad at the top of the FedSmith home page. We’re also going to do an Advanced Bargaining Training: Focus on I&I Bargaining in early summer. Keep reading FedSmith and look for our Ads.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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